Why the Left is Wrong About Merrick Garland

I went to bed musing about what I see as a complete disconnect between how a lot of voices on the progressive left are viewing the nomination of Merrick Garland and how I view it. I woke up thinking about the same thing, and how I might best articulate the difference. Before I could begin writing anything, though, I saw Nancy LeTourneau’s piece on the same subject. What she captured was a certain consistency of outlook between the president and his three Supreme Court nominees. At its root, this is a preference for patient, pragmatic organizing.

It’s more than a preference, really. It’s a belief that this is the best, most effective, way to make a positive difference. I encourage you to read Nancy’s piece to see what I’m talking about. I think it’s important to understand the point she’s making. But it’s still slightly different from what’s bugging me.

I still find it jarring that we’ve gotten to the point where Jewish-Americans can be characterized as “old white guys” as if they’ve been an accepted part of the political and social elite since the “discovery” of America. In truth, Garland’s grandparents fled the Pale of Settlement in the early 20th-Century. They weren’t on the registry of the Daughters of the Revolution. In fact, there isn’t a single white Anglo-Saxon protestant on the Supreme Court and there hasn’t been one since John Paul Stevens retired in 2010. That seems a little surprising considering that there are 150 million protestants in the country, and they still make up about 47% of the population. For most of our history, the Supreme Court has been made up entirely of protestants, almost all of them men. It was extremely important to get a broader representation of the country, including Jews, Catholics, women, and (under Obama) a Latina. I’d say, however, that it’s no longer remotely accurate to argue that the Supreme Court is the exclusive province of WASPs since there are no WASPs on the court. It’s even more inappropriate to characterize Merrick Garland as just one more non-diversity pick in the WASPy tradition of the Court.

To be clear, I’m not reacting to a reasonable desire people have to see representatives of historically underrepresented groups on the Court. I understand why most blacks feel that Clarence Thomas misrepresents them on the Court. But it’s taking things way too far to complain that Merrick Garland is just another old white dude. Maybe it’s a sign of the tremendous progress Jews have made in gaining acceptance in our country, and in that sense this is a positive development. But it’s also a little insulting, and misleading.

Still, what really got me thinking was the way that Beutler characterized the decision the president had to make. I read the following and it just about gave me a case of whiplash:

There was a profound and straightforward political logic for Obama to nominate a judge like Leondra Kruger, who would’ve become the first black female justice in U.S. history, or Jane Kelly, who’s a female former public defender and a resident of Iowa—home of embattled senator and Senate Judiciary Committee Chairman Chuck Grassley.

Nominating anyone along those lines would have fulfilled a promise to make the court more representative of the nation and drawn attention to the Republican Party’s desperate, power-mad commitment to keeping the Court the same, and their blindness to the merits of having a more diverse court—even if it means handing the nomination power to Donald Trump.

A nominee like Garland, by contrast, cedes all of these advantages to the Republican Party. It allows them to say, in effect, “See, this has nothing to do with race, or gender, or even ideology. We just want the next president to pick Scalia’s successor.”

Why do that? Perhaps the White House reads the politics differently.

This is 180 degrees away from how I viewed this decision. I want to reiterate that I completely reject the idea that picking a Jewish-American is somehow a rejection of making the Court more diverse and representative. But, more than that, I can’t agree that the goal here should have been to make the point that the Republicans are opposed to more gender or racial diversity on the Court.

First of all, the Republicans (and their presumptive nominee) do a fine job of making clear that they are not the party for racial or religious minorities. We don’t need a high profile fight over the Supreme Court nominee to drive home that point.

Secondly, racial animus and religious bigotry are not what is driving the Republican strategy of obstruction here. They actually like Merrick Garland despite him not being a follower of Jesus Christ. What picking a candidate the Republicans like has done is highlight that this isn’t about anything other than power politics. And that’s precisely what makes their position so indefensible. After all, progressives aren’t solely disappointed that Merrick Garland is an “old white dude;” they’re primarily disappointed that he’s seen as a moderate, centrist judge. Had Obama picked Leondra Kruger or Jane Kelly instead, their ideology would have been the main subject of debate rather than the tactic of total obstruction.

But let’s not tip-toe around this issue here. It’s made much more explicitly by Markos Moulitsas:

Let’s game this out:

1. You choose someone to showcase GOP radicalism. This was Obama’s approach. Pick a moderate jurist who’s been previously praised by Senate Republicans. It makes them look bad! Less crazy Republican voters, turned off by Donald Trump, decide to hold their noses and vote for Hillary Clinton because their party is a mess. But nothing stops them from voting for the rest of the Republican slate on the ballot.

2. You choose someone to excite the liberal base. You don’t peel away Republicans, but who gives a shit anyway. We don’t need them for the presidential race, and if they turn out, they hurt us downballot. But you excite liberals, help heal the party in this primary season, and that benefits us short- and long-term both up and down the ballot.

The right choice is so fucking obvious I can barely believe Obama did what he did. And this is why Clinton will ultimately be a better president than Obama—she will never try to appease Republicans or try to win them over. She knows they hate her guts, and she’s under no illusions she can change that.

Obviously, Markos viewed this pick primarily through the lens of what it could do to positively or negatively affect the presidential and congressional elections. His conclusion is that the president did the same, but just made an idiotic strategic choice. It would, in Markos’s view, be much more effective to nominate someone who would excite some segment of the Democratic base, which would be completely outraged when the first (you pick ’em) Asian-American or black woman or other traditionally underrepresented group was disrespected. Also, someone with clearly defined left-wing judicial views would obviously be a non-starter with the Republicans, but would also mobilize and energize the left for precisely this reason.

Let me make a few points about this, including some that should be obvious.

Most people see it as a problem that the Supreme Court has become so politicized, but it’s still seen as somewhat legitimate for one side to object that a judge is too far out of the “mainstream.” The Democrats established this standard when they (and several Republicans) rejected Robert Bork. If the Republicans could hide behind the cover of that kind of objection, they’d pay much less of a price in the court of public opinion. It’s a coy move to nominate someone progressive enough to satisfy the hard left and then try to hide behind the fact that the nominee is Asian or Latino or LGBT, but it isn’t exactly an honest argument. If the objection is primarily ideological and related to judicial outcomes, it’s a cheap trick to say that the objection is racial or religious. It might be effective at mobilizing the base, but it’s hardly noble.

There’s also an assumption in Markos’s reasoning that no nominee will be confirmed, so the only thing that matters is how the nomination plays with the public. I don’t know who would volunteer to be the piñata in this scenario, but picking someone who the next Congress will be no more likely to confirm than the present one would be problematic to say the least. Obama’s goal is to put someone on the Court, not to use a worthy nominee as a prop in an election year argument. If, at the end of the day, the nominee has to be discarded, why would anyone agree to be the nominee?

More than this, though, this whole way of thinking is based on defeatist thinking. The president is trying to break the Republicans’ resistance to confirming anyone, to hold hearings for anyone, to even meeting with anyone. By picking the chief of the DC Circuit Court of Appeals, he’s already broken the last taboo and created divisions in the Senate Republicans’ ranks.

Now, I was among the first to say that the Republicans would never agree to let President Obama select Antonin Scalia’s replacement, so I understand why this is assumed to be the case. In truth, however, by picking Merrick Garland, the president has probably proven me wrong. Should Hillary Clinton win the election in November, I’m fairly sure that the Republicans will confirm Garland in the lame duck session that follows. In fact, getting private assurances to this fact was probably essential to convincing Garland to accept the nomination at all. If the Republicans renege on those private assurances, Hillary Clinton will have no problem resubmitting the name of a judge who her husband nominated to the DC Circuit. So, Garland will sit on the Court, one way or the other, unless the Republicans win in November.

I don’t think we could say the same thing about a nominee who was picked, as the Republicans predicted they would be, as a sacrificial lamb intended to mobilize the base. Even if the Republicans lose control of the Senate in the November elections, they’ll still be able to filibuster a nominee they don’t like, and the more ideological the nominee the easier it will be for them to sustain that filibuster.

Finally, there’s the issue of Garland as a prospective Justice. Some people think he’ll be to the right of the four pre-existing Democrat-nominated Justices, and some people think he’ll fit in to the left of Elana Kagan. He’s strong on environmental and labor issues, and more suspect on issues of criminal justice and privacy. Based on that, he’ll probably be strong on most, but not all, issues that progressives care about.

It’s important not to see him as some sop to Republican intransigence. He’s perhaps the best credentialed judge in the country, a former clerk to Justice Brennan, a valedictorian at Harvard, and someone (as Nancy pointed out) who fits neatly into Obama’s preference for pragmatic consensus-building change.

I know it’s tempting to build your email and donor lists by going for maximum outrage here, but this pick made sense. He’s a solid pick and it’s a solid political move, too.